Central Administrative Tribunal - Delhi
Brij Mohan Verma vs The Municipal Corporation Of Delhi on 22 March, 2012
Central Administrative Tribunal Principal Bench OA No.1576/2011 Judgment reserved on: 20.03.2012. Judgment pronounced on: 22.03.2012. Honble Mr. M.L. Chauhan, Member (J) Honble Mrs. Manjulika Gautam, Member (A) Brij Mohan Verma, S/o late Shri Om Prakash Verma, Executive Engineer (Civil), Municipal Corporation of Delhi. -Applicant (By Advocate Shri Ankit Sibbal) -Versus- 1. The Municipal Corporation of Delhi, Through its Commissioner, Town Hall, Delhi-110063. 2. A.K. Mittal, Superintending Engineer (Civil), On Current Charge Basis, Through its Commissioner, The Municipal Corporation of Delhi, Town Hall, Delhi-110006. 3. V.K. Bhatia, Superintending Engineer (Civil) On Current Charge Basis, Through its Commissioner, The Municipal Corporation of Delhi, Town Hall, Delhi-110006. -Respondents (By Advocate Shri R.K. Jain) O R D E R Mr. M.L. Chauhan, Member (J):
Applicant has filed this OA, thereby praying for the following reliefs:
8.1. to allow the present application;
8.2. to quash the impugned order dated 30.12.2010 (Annexure A-1) as bad in law inasmuch as they are detrimental to the Applicant;
8.3. to direct the Respondent Corporation to grant Current Charge of the higher post of Superintending Engineer (Civil) to the Applicant immediately;
8.4. to issue any such and further order/directions this Honble Tribunal deems fit and proper in the circumstances of the case; and 8.5. To allow exemplary costs of the application.
2. As can be seen from the relief clause, the grievance of the applicant in this OA is regarding transfer and posting of respondents 2 & 3, who are substantive holders of the post of Executive Engineer to the posts of Superintending Engineer on current charge basis. The basis for such grievance is that applicant is senior to both respondents 2 & 3 and despite this he has not been given the current charge of the higher post of Superintending Engineer and also that at the relevant time no departmental or criminal proceedings were pending against the applicant. It has been pleaded that no doubt applicant was suspended for the first time, vide order dated 09.01.2004 but he was reinstated on 27.02.2004 pending some enquiry. It is further stated that a major penalty charge sheet was issued to him on 07.07.2004, on the basis of which the punishment order dated 06.12.2006 was passed. The currency of the said punishment order came to an end on 06.12.2010. Thus, it was not permissible for the respondents to ignore the claim of the applicant for assigning current charge of the higher post of Superintending Engineer, as was given to respondent Nos. 2 & 3 and other persons vide impugned order dated 30.12.2010 (Annexure A-1). It is on the basis of these facts applicant has filed this OA, thereby praying for the aforesaid reliefs.
3. Notice of this Application was given to the respondents, who have filed their reply-affidavit, wherein the facts, as stated above, have not been disputed. Respondents have stated that applicant was again suspended vide order dated 08.08.2008 though reinstated subsequently on 16.09.2008, pending enquiry. It is submitted that in consequence of the same RDA case No.3/002/2010 was registered against the applicant in respect of which now the necessary charge sheet has already been issued to the applicant vide letter dated 05.07.2011. The respondents have admitted that due to the exigency of work and withdrawal of ad hoc promotion of one Shri K.P. Singh, who was looking after the work of Superintending Engineer/Shahdara North Zone I&II Circle), Shri A.K. Mittal, EE (M)-I/Shahdara South Zone and Shri V.K. Bhatia EE (Building)/Central Zone were given look after charge of SE (Civil) since they do not have any RDA/police case for better administration and efficiency. It is pleaded that the case of the applicant could not be considered since RDA case No.3/002/2010 was registered against him.
4. We have heard learned counsel of the parties and gone through the material placed on record. Admittedly, it is not a case where respondent Nos. 2 & 3, who are admittedly juniors to the applicant, have been promoted to the posts of Superintending Engineer, vide impugned order dated 30.12.2010. The reasons for not giving the current charge of the higher post of Superintending Engineer is that REA case No.3/002/2010 stands registered against the applicant. Further, from the facts, as stated above, it is evident that the service record of applicant is not satisfactory and he has been placed under suspension on two occasions and on one occasion he has been imposed the penalty of reduction in pay in the time scale by four stages for a period of four years with cumulative effect, currency of which came to an end on 06.12.2010. It is also not disputed that another enquiry is pending against applicant. Thus, under these circumstances if the applicant has been denied the current charge of the higher post of Superintending Engineer, it cannot be said that the action of respondents is bad in law. Law on this point is no more res integra.
5. At this stage, we wish to refer to the decision of the Apex Court in State of Haryana v. S.M. Sharma and others, 1993 SCC (L&S) 1072. That was a case where the respondent before the Apex Court was employed as Sub Divisional Officer in the service of the Haryana State Agricultural Marketing Board (the Board). The Chief Administrator of the Board by the order dated June 13, 1991 entrusted Sharma with the current duty charge of the post of Executive Engineer. Later on by the order dated January 6, 1992 the Chief Administrator withdrew the said current duty charge from Sharma and transferred him to Bhiwani. Sharma challenged the order before the High Court by way of a writ petition under Article 226 of the Constitution of India. The High Court by its judgment dated August 20, 1992 allowed the writ petition and quashed the order dated January 6, 1992. Against the judgment of the High Court an appeal was filed before the Apex Court. The Apex Court set aside the judgment of the High Court. The Apex Court held that it is only a posting order in respect of two officers. With the posting of Ram Niwas as Executive Engineer Sharma was automatically relieved of the current duty charge of the post of Executive Engineer. Sharma was neither appointed/ promoted/posted as Executive Engineer nor was he ever reverted from the said post. He was only holding current duty charge of the post of Executive Engineer. The Chief Administrator never promoted Sharma to the post of Executive Engineer and as such the question of his reversion from the said post did not arise. Thereafter in para-12 of the judgment the Apex Court made the following observations:
12. We are constrained to say that the High Court extended its extra-ordinary jurisdiction under Article 226 of the Constitution of India to a frivolity. No one has a right to ask for or stick to a current duty charge. The impugned order did not cause any financial loss or prejudice of any kind to Sharma. He had no cause of action whatsoever to invoke the writ jurisdiction of the High Court. It was a patent misuse of the process of the court.
6. If the matter is viewed in the light of the law laid down by the Apex Court, it is evident that current charge of another post cannot be claimed as a matter of right. Admittedly, respondents 2&3, who were juniors to the applicant have been given current charge in their own pay scale, which neither amounts to promotion nor appointment to the higher post. Why the applicant has been denied the said charge has been explained by the respondents in their reply-affidavit. Thus, we see no infirmity in the action of the respondents, whereby the current charge of higher post has been denied to the applicant.
7. The matter can also be looked from another angle. As of today, the charge-sheet against the applicant for a major penalty has been served. Even if we quash the impugned order, the fact remains that the applicant, who is involved in a RDA case No.3/002/2010, cannot be permitted to hold the current charge of the higher post of Superintending Engineer.
8. Thus, viewing the matter from any angle, the OA is found bereft of merit, which is accordingly dismissed, with no order as to costs.
(Manjulika Gautam) (M.L. Chauhan) Member (A) Member (J) San.